/l3v\/3 




014 443 684 2 



204 
M3 U3 
opy 1 



MESSAGES 

OF 

J. Gr. BEEEET, MAYOE, 

VETOING 

"AN ACT AUTHORIZING THE ERECTION OF A MARKET-HOUSE IN THE SEVENTH WARD," 

AND 

"AN ACT FOR SUPPLYING THE WASHINGTON ASYLUM WITH WATER, AND TO 
PROTECT IT AGAINST LIGHTNING;" 

ALSO 

'•AM ACT REGULATING THE DISTRIBUTION OF POTOMAC WATER THROUGHOUT THE 
CITY OF WASHINGTON :" 

TOGETHER WITH THE 

OPINIONS OF J. M. CARLISLE, CORPORATION ATTORNEY, THEREON. 



Mayor's Office, 
Washington City, May 2, 1859. 

Gentlemen : Herewith I return to the Board of Aldermen, in 
which they severally originated, two ordinances entitled respectively, 
"An act authorizing the erection of a market-house in the Seventh 
Ward," and "An act for supplying the Washington Asylum with 
water, and to protect it against lightning;" which ordinances I 
cannot approve, for the reasons which I now proceed to state. 

Certain propositions may, in the first place, be stated as self-evident. 
The Charter of our city has provided us with a government, in which 
the legislative and executive functions — the power to make the laws 
and the duty to see them properly executed — are clearly separated 
and defined. This distinction, so easily to be detected and of such 
vital importance to the perfect accomplishment of the end of the 
Charter, it is our plain duty scrupulously to observe and respect. 
We have, indeed, no legal power to act, or to bind in any manner 
the people of this city, in their persons or property, otherwise than 
in accordance with these clearly-defined and fundamental principles 
of the organic law. 

If, then, it shall be found, upon a careful consideration of these 
ordinances, that they are repugnant to these fundamental truths, 
you will, I feel confident, agree with me that they cannot become 
the law. I am aware that they are not wholly without precedent ; 
but it is equally certain that, whatever examples of such legislation 
are to be found in our municipal history, they have no other au- 
thority than that which may belong to them as measures adopted 
without any attention having, at the time, been drawn to the objec- 
tion now made ; and persuaded, as I am, that this objection is rad;l 




T. MeGn.L, Printer. 



Fz*4 

MSW3 



cal and insuperable, I cannot reconcile it to my sense of duty to 
recognise any such precedents. 

• The " act authorizing the erection of a market-house in the Sev- 
enth Ward," not only authorizes that work, giving directions as to 
its location and plan, and making the nedessary appropriation of 
money for that purpose, but by its second section it proceeds to 
make provision for the execution of the law in a manner wholly 
inconsistent with the office and duty of the Mayor. In fact, it pro- 
poses to reduce that office and duty to a mere cypher in this partic- 
ular matter. Its scheme is to make the Mayor one of a body of 
three, created for this occasion, to execute, or cause to be executed, 
a law of this Corporation. And this triumvirate, unknown to the 
letter or spirit of the Charter, has the additional objection that the 
majority is to be composed of the representatives of the two Boards 
which compose the legislative branch, acting in their capacity of 
members of each Board respectively ; thus directly intruding the 
legislative into the executive province, and attempting to over- 
shadow and control the Mayor in the performance of those duties 
for the discharge of which the people of this city have been pleased 
to elect him, while they have elected the members of the two Boards 
for another and a very different purpose. In matters of principle 
it is perfectly legitimate, and sometimes indispensable, to compare 
things which are widely different in magnitude and degree ; and I 
therefore put this case to you : suppose an act of Congress were 
proposed authorizing and directing any public contract to be made, 
and undertaking to prescribe the execution of the law by a com- 
mittee composed of the President of the United States and one 
member of each House of Congress ; would any man, except the 
author of such a bill, hesitate to pronounce it unconstitutional ? 
Could any person charged, by his election and his oath, with the 
executive duty — feeling the responsibilities of the first, and having 
a due comprehension of the latter — give his assent to an act which, 
while infringing upon the prerogatives of his office, disturbed the 
balances, of the fundamental law ? And yet, in principle, there is 
no difference between that case and this. It is perfectly well known 
to every intelligent reader of the city charter that our municipal 
government, in all that concerns the present question, is a miniature 
of the Federal Government, and the government of the States 
generally. Indeed the same principle, it is believed, characterizes 
all our municipal governments which have been framed with any de- 
gree of care or foresight. It is one which does not commend itself 
solely by dogma or precedent, but by enlightened reason and a pru- 
dent regard to the public interest. It does not simply concern the 
executive or legislative branch of the city government in any mere 
•personal or official sense; it relates to our common constituency, 
whose whole interest cannot be fully and perfectly protected, except 
by jealously guarding that careful and necessary adjustment and 



balance of power which was intended to make each department, act- 
ing in its appropriate sphere, a watch and a check on the other, and 
which is clearly evaded by the peculiar provisions of the ordinance 
in question. In the nature of things, the making of laws and the 
execution of them ought to be placed in different hands. But, 
whether this be so or not, it is clear, beyond any question, that 
such has been the will and enactment of Congress in creating this 
Corporation. In authoritive illustration, of this, no stronger case 
can be put than that which was determined by the unanimous judg- 
ment of the Circuit Court of this District, in pronouncing void the 
provisions made for the execution of the laws generally, by police 
magistrates elected by the two Boards, instead of being appointed 
on the nomination of the Mayor, by and with the advice and consent 
of the Board of Aldermen. 

Under the provisions of the Charter the voters of this city have 
intrusted to a majority of each of the Boards comprising the Coun- 
cil, with the assent of the Mayor, or two-thirds of each without his 
assent, the power of framing the laws ; while to the Mayor, and to 
the Mayor alone, it has intrusted the power and duty of seeing that 
they are faithfully executed ; and it is with a full sense of the respon- 
sibility thus imposed upon me that I have solemnly sworn to dis- 
charge that duty " to the best of my skill and judgment, without 
favor or partiality." 

While I hold this office, which the partiality of my fellow-citizens 
has clothed me with, I can venture to assure you, gentlemen, that 
it is my intention, and shall be my constant aim, to avoid the slight- 
est invasion of your chartered rights and privileges. While I shall 
be scrupulous in this regard, I shall be equally jealous (not on, my 
own account, but in reference to the constituency I represent) that 
the powers and prerogatives of the office I hold shall, so far as I 
have the means of preventing it, be in like manner shielded from 
invasion. Neither you nor any of my fellow-citizens can reason- 
ably expect of me that I should place myself in tutelage, or suffer 
my conduct to be controlled by voluntarily becoming one of a com- 
mittee of three for the discharge of my duties. Whatever superior 
wisdom or experience may reside in the two Boards, (which I do not 
question,) we at least derive our powers from the same sources — 
namely, the confidence of our fellow-citizens and the Charter of Con- 
gress, and with a view to these alone are we to estimate our respect- 
ive responsibilities. 

I do not question the power of the Councils by an ordinance 
which shall receive the approval of the Mayor, or be passed in the 
prescribed mode, notwithstanding his veto, to direct the terras of 
any contract, or to surround the making of any contract by all the 
guards and restrictions which may be deemed advisable. This 
would be the act of the whole Corporation, within its legitimate 
sphere ; and it has the undeniable right to fix the terms and condi- 



tions upon which it will be bound by a contract. But I deny the 
right to direct the execution of such an ordinance in the manner 
proposed in the present case. 

With regard to the " act for supplying the Washington Asylum 
with water, and to protect it against lightning," the same principles 
are applicable to the provision " for providing and putting up light- 
ning rods." With respect to the recital therein contained, of a 
contract heretofore made by the Mayor and joint committee for the 
plumber's work of f&at building, I have to say that no such contract 
was made by me ; and if it was made by my predecessor during the 
execution of the work contracted for by Gilbert Cameron, I am not 
prepared, without further information, to sanction an agreement 
made with any other person, pending that contract, for extra or 
additional work upon the building. 

Considering the importance of the question touching the respect- 
ive powers and duties of the Councils and the Mayor, and in view 
of other pending measures involving the same question, I have 
thought it proper to take the advice of the Attorney of the Corpo- 
ration upon that subject, and have found his opinion to accord with 
my own. 

It is hardly necessary for me to say that it would give me plea- 
sure to approve an ordinance for the erection of a market-house in 
the Seventh ward, and to supply the Washington asylum with water, 
and to protect it against lightning, framed in accordance with the 
charter. 

Very respectfully, 

JAMES G. BERRET, Mayor. 



Office of the Corporation Attorney, 

Washington, May 5, 1859. 
Hon. Jas. G. Berret, Mayor: 

Sir : I have to acknowledge the receipt of a copy of the resolu- 
tion of the Board of Aldermen, requesting to be furnished with the 
opinion of the Corporation Attorney, alluded to in the message veto- 
ing the "act for supplying the Washington Asylum with water," 
&c, and the " act authorizing the erection of a market-house in 
the Seventh Ward." 

That opinion, though formed upon great consideration, was, as 
you are aware, communicated to you verbally, and was not thought 
necessary to be reduced to writing — your intention then being to 
present the grounds fully in the message itself. 

I have perused that paper very carefully, and do not perceive 
that I can add anything to its contents to make my view of the 
legal question more intelligible, or the reasons which support it 
more satisfactory. 

I am, sir, very respectfully, your obedient servant, 

J. M. CARLISLE, Attorney, $c, £c. 



Mayor's Office, Washington, May 16, 1859. 
To the Board of Aldermen : 

Gentlemen : I regret to be obliged to return, as I now do, without 
my approval, the ordinance entitled "An act regulating the distri- 
bution of Potomac water throughout the city of Washington." 

In obedience to the Charter, I proceed to state the reasons for 
withholding my signature to this act. 

In my message of the second instant the general principles gov- 
erning my conduct upon questions concerning our -relative duties 
and obligations under the Charter are sufficiently stated. I have 
nothing to add or to retract in that behalf. It only remains for me 
to call your attention to the application of those principles to the 
matter in hand. 

By the 12th section of this ordinance you propose that I shall 
attend your meetings and witness the discharge by you of duties 
which are, in their nature, incident to the office held by me. For 
any purpose whatever, except the taking of my official oath as pre- 
scribed by the Charter, I am not aware that it is' proper for me to 
be present at a joint meeting of the two Boards, or at their meet- 
ings severally. But for the particular purpose of giving a tacit 
sanction to proceedings in which it is not possible that I can take 
any part whatever, and which are to result in an "absolute" award 
by you binding the Corporation to a contract, it seems to me that 
my presence would be eminently improper. 

The proposed ordinance directs that bids for the contracts which 
it contemplates shall be made in duplicate, and "transmitted," one 
copy to the President of the Board of Aldermen and one copy to 
the President of the Board of Common Council." The Mayor is, 
by the terms of the ordinance, apparently expected to be present ;' 
but, in the event of his failure to attend, it is provided that the 
contracts shall be absolutely awarded, "the Mayor being absent." 

I am unable to perceive any possible ground upon which such a 
course of proceeding can be reconciled with our respective func- 
tions as defined by the Charter. In approving it I should, in my 
judgment, assent to a complete extinguishment of the distinctive 
duties of the Executive, and a practical obliteration of the bounda- 
ries between us which Congress has thought it wise to erect. 

I will only add that if any occasion can give peculiar claims upon 
upon us for the most scrupulous attention to the will of Congress as 
expressed in the Charter, it would seem to be the present, when we 
are about to avail ourselves of so bountiful and munificent a gift. 

Although I have not been embarrassed by doubts as to the true 
construction of the Charter, so far as it relates generally to the 
respective functions of trie Mayor and the two Boards, nor as to 
what should be my course in this special' case, yet, in order to com- 



6 

mead my action to the more favorable consideration of the Board, 
with which, very much to my regret, I find myself compelled to 
differ, I have requested the Corporation Attorney, who, by an act 
of May 28, 1858, is made the legal adviser of the Mayor, to ex- 
amine the particular question of disagreement and give me his 
opinion thereon in writing. To that opinion, which I herewith 
communicate, and which from the justly-deserved professional dis- 
tinction of its author, it is hardly necessary for me to say is entitled 
to your attentive consideration, I respectfully refer as containing 
more at length the special grounds upon which I have felt myself 
impelled to withhold my assent to the bill in question. 
Very respectfully, 

JAMES G. BERRET, Mayor. 



Office of Corporation Attorney, 
Washington, May 12, 1859. 
Hon. J. G. Berret, Mayor : 

Sir : In compliance with your request I have examined and con- 
sidered the 12th section of the act " regulating the distribution of 
Potomac water throughout the city of Washington" with a view to 
the question whether the provisions of that section ate in conformity 
with the Charter. 

On a recent occasion it became my duty to express to you what 
I entertain no doubt are the true principles of our city government 
in respect of the relative functions of the Mayor and the two Boards. 
These principles indeed are so obvious and so inseparable from the 
very existence of that government, as it has been created and de- 
fined by Congress, that 1 do not think any candid mind can seriously 
dispute them. If they are found to be irksome or unsuited to the 
exigencies of the times, or of any particular occasion, they are 
nevertheless binding until the Charter shall have been essentially 
and completely changed ; and its change can only be accomplished 
by the power which brought the Corporation into existence in its 
present form ; nor is it possible for any ingenuity to devise a plan 
or scheme which shall disregard these principles, and practically 
confound the legislative and executive duties, without a plain viola- 
tion of the Charter. It has not been the pleasure of Congress to 
intrust the government of the city to a single assembly, or to two 
assemblies, but to a Corporation, composed of two Boards, different- 
ly constituted and having in some respects distinct functions, and a 
Mayor, who is not the agent or servant of the two Boards, but a 
co-ordinate and independent branch of the government, having, 
with a qualified participation in the making of the laws, the exclu- 
sive duty of seeing to their faithful execution. It was from a regard 
to these principles that .1 felt bound to advise you, in the regular 



fp 



course of my official duty, that the two ordinances, referred to in 
your message of the second instant, were not in conformity with 
the Charter. 

I am of opinion that the twelfth section of the Water Act is 
liable to the same objection. Its whole scheme is (so far as I am 
informed) an entire novelty in our city legislation. It has for its 
object, not the making of a law to be executed in the usual way, 
but the conversion of the two branches of the municipal legislature 
into a sort of administrative board, to open and examine bids and 
"award" contracts among the bidders, the Mayor being invited to 
be present at that proceeding in some undefined, and to me not con- 
ceivable, capacity, without any power under the Charter to partici- 
pate at all in the business, or even to open his mouth by way of 
making any observation upon it. It proposes that he shall per- 
sonally attend the Councils in his capacity of Mayor, to see the 
Presidents of the two Boards open the duplicate bids, which are to 
be addressed to them respectively, and to witness the process of 
"carefully examining and comparing all the received proposals;" 
and, after he has performed this insignificant ceremony, " the said 
City Council" shall "award, by ordinance of the Corporation, the 
contracts absolutely to the lowest responsible bidder or bidders ;" 
but "if from any cause the Mayor should fail to be present at the 
said Joint meeting, that then and in that case the two Boards shall 
proceed to make said aioard, the Mayor being absent ;" the "said 
award" having been, by the immediately preceding clause of the 
section, declared to be absolute, or, in other words, final and con- 
clusive, vesting in the bidder so selected a legal and perfect right 
against the Corporation. In my opinion, to sign such an ordinance 
would be a formal and unwarrantable surrender of the independent 
trust and duty which the Charter has imposed upon the office of 
Mayor, and for the execution of which the people of this city have 
been pleased to elect you. 

I am, sir, very respectfully, your obedient servant, 

J. M. CARLISLE, Attorney, £c. 

Copy of section 12, above alluded to. 

"Sec. 12. And be it enacted, That the Water Registrar, immediately after en- 
tering upon the duties of his office, and annually, on or about the first day of Feb- 
ruary, advertise for a period of from ten to thirty days in at least two daily news- 
papers published in Washington having the largest subscription lists, inviting sealed 
proposals in duplicate, to be transmitted one copy to the President of the Board of 
Aldermen and one copy to the President of the Board of Common Council, for fur- 
nishing, during the current year, delivered in this city, of all water mains, valves, 
branches, bends, sleeves, caps, Corporation stops, fire-plug hydrants, and every 
other article or thing required in distributing the water ; and also, after having di- 
vided the city into districts by wards, or otherwise, for the trenching, laying of the 
mains complete, inserting the valves, branches, and outlets ; erecting the fire-plug 
hydrants ; filling, ramming, and leveling the ditches and excavations ; designating 
the probable number of feet of main and size, and the quantity of every other 



T< 



LIBRARY OF CONGRESS 



8 




014 443 684 2 



article or thing enumerated required to be furnished or laid during the year ; and 
naming a time when such sealed proposals will be opened in joint meeting of the 
two Boards of the City Council. And all such proposals shall, at the time named 
in such advertisements, be opened and read in the joint meeting of the two Boards 
aforesaid and in the presence of the Mayor. All proposals for contracts shall be 
for a sum certain as to the price to be paid or received ; and no proposition which 
is not thus definite, or which contains any alternative condition or limitation as to 
price, shall be entertained or acted upon. No more than 1 one proposal shall be 
received from any one person for the same contract, and all the proposals of the 
person offering more than one shall be rejected. And the said City Council shall, 
after carefully examining and comparing all the received proposals as aforesaid, 
award, by ordinance of the Corporation, the contracts absolutely to the lowest 
responsible bidder or bidders: Provided, That if, from any cause, the Mayor should 
fail to be present at the said joint meeting, that then and in that case the two 
Boards shall proceed to make said award, the Mayor being absent. 



0( 



LIBRARY OF CONGRESS 




°014 443 684 2 



CM 



CO 




LO 



